It is settled position in law (See Judgment in Testamentary Petition (L.) No.118 of 2007 of Bombay High Court in Girish Kanaiyalal Munshi Vs. Sudha Girish Munshi & Anr.) that property disputes relating to the grant of probate or Letters of 3 TP (L.) No.455_2011
Administration are not exempted from the payment of Court fees even if they are filed by female litigants.
9. The aforesaid provisions show that the petition for issue of succession certificate is no different from the provisions under which the probate or Letters of Administration are granted. A reading of the aforesaid provisions makes this position clear. The Petition for Succession Certificate may be filed only because the probate or Letter of Administration would not be applied for since it is not in respect of immoveable property left by the deceased. The Petitioner is liable to pay court fees in such petition also. An application is to be similarly made showing similar particulars in the prescribed format. The fact of the certificate being issued is similar to the provision of the Probate or Letters of Administration with regard to the third party concerned with the estate of the deceased. The revocation of the certificate is also upon similar grounds and an appeal is provided from the order passed in such petition.
10.. There is, therefore, no reason why a petition for grant of succession certificate should be treated differently from a petition for grant of Letters of administration or Probate, merely because it relates to moveable property of the deceased unlike the other petitions dealing with the immoveable properties also.
Bombay High Court
Jsn In The High Court Of Judicature ... vs Unknown on 25 June, 2012
Bench: R. S. Dalvi
1. The aspect which the court is called upon to consider is whether the Petitioner Snehala Pramod Desai, who is the widow of the deceased, is liable to pay ad valorem court fee upon the securities shown in the petition which are sought to be transferred to the names of the Petitioner as also the other heirs under the Succession Certificate applied for by the Petitioner.
2. The Petitioner is the widow of the deceased who is one of the heirs alongwith her two married daughters. Counsel on behalf of the Petitioner stated that only the Petitioner has applied for waiver/exemption of court fee on the ground that she is a woman and that the securities will be used for her maintenance.
3. The Petition has been filed simplicitor for issue of succession certificate in respect of the securities left by the deceased husband of the Petitioner. The Petitioner has not stated or substantiated that the Petitioner, as the widow, is not able to otherwise maintain herself.
4. It is settled position in law that a woman is entitled to waiver/exemption of court fee only in respect of applications for maintenance in matrimonial disputes or with regard to divorce and 2 TP (L.) No.455_2011
family law matters and not for property disputes.
5. The securities mentioned in the petition is the moveable property left by the deceased. There is no dispute with regard to that property. The Petitioner, as also her two married daughters, are entitled to an equal share in the estate of the deceased. The Petitioner would be entitled to the securities upon the death of the deceased and upon administration of his estate.
6. Since the Petition is in respect of only the securities, the Petitioner has not applied for Probate or Letters of Administration of the deceased but only for the issue of Succession Certificate U/s. 370 of the Indian Succession Act. Upon the certificate being issued in the form specified in the schedule VIII, the Petitioner would be empowered to receive interest and dividends thereon U/s.374 (a) of the Indian Succession Act (ISA). The Petitioner would, therefore, be liable to deposit the sum equal to fee payable under the court fees act 1870 (and later Bombay Court Fees Act, 1957) as applicable U/s.379 (1) of the ISA. The fact of the succession certificate being issued would be conclusive against the companies in which the deceased held the share and securities U/s.381 of the ISA. Any party aggrieved by the issue of the certificate would be entitled to apply for revocation of the certificate U/s.383 of the ISA. The order passed herein would be liable to appeal U/s.384 of the ISA.
7. It is upon the aforesaid provisions of law that the Petition has been filed.
8. It is settled position in law (See Judgment in Testamentary Petition (L.) No.118 of 2007 of Bombay High Court in Girish Kanaiyalal Munshi Vs. Sudha Girish Munshi & Anr.) that property disputes relating to the grant of probate or Letters of 3 TP (L.) No.455_2011
Administration are not exempted from the payment of Court fees even if they are filed by female litigants.
9. The aforesaid provisions show that the petition for issue of succession certificate is no different from the provisions under which the probate or Letters of Administration are granted. A reading of the aforesaid provisions makes this position clear. The Petition for Succession Certificate may be filed only because the probate or Letter of Administration would not be applied for since it is not in respect of immoveable property left by the deceased. The Petitioner is liable to pay court fees in such petition also. An application is to be similarly made showing similar particulars in the prescribed format. The fact of the certificate being issued is similar to the provision of the Probate or Letters of Administration with regard to the third party concerned with the estate of the deceased. The revocation of the certificate is also upon similar grounds and an appeal is provided from the order passed in such petition.
10.. There is, therefore, no reason why a petition for grant of succession certificate should be treated differently from a petition for grant of Letters of administration or Probate, merely because it relates to moveable property of the deceased unlike the other petitions dealing with the immoveable properties also.
11. However, my attention has been drawn to the judgments of Single Judges of this Court with regard to waiver of the Court fee for a female litigant applying for the grant of the administration of the estate of this Court under succession certificates issued by the Court. It has been held in the case Mrs. Jyoti S. Doshi Vs. M/s. Hindustan Hosiery Mills, AIR 2000 Bombay 474, by Justice H.L. Gokhale, as he then was, that the waiver of Court fees would be only to the extent of 4 TP (L.) No.455_2011
the benefit the female litigants would be getting in the estate of the deceased in matters of probate petition or succession certificate as aforesaid. The aspect of the probate petition has been settled in the judgment in the case of (Girish Kanaiyalal Munshi supra).
12. In the case of Shri Bipin Dalpatbhai Shah Vs. Vasantben Rasilal Zaveri, 2001(4) ALL MR 1 Bombay, Justice J.A. Patel, as he then was, held that property disputes with regard to matrimonial matters required waiver/exemption of court fee by female litigants. Monies payable to the legal heirs of the deceased husband on account of his death for which a succession certificate would have been applied for would be covered by the term "property disputes" and would, therefore, fall within the purview of the notification for the waiver of Court fee. That would also be only to the extent of benefit received by such heir in the estate of the deceased. This is upon the observation that the amounts required upon the death of the deceased payable to the deceased were "really required for the maintenance of the Petitioner as well as three children".
13. In that case the deceased was an employed person. He received benefits on his death. Those benefits were payable to his heirs. The heirs were widow and three children. The widow was the female litigant. She could, therefore, be given the benefit of exemption because it was really required for her maintenance. It may be mentioned that when an employee dies, the death-cum-retiral dues would indeed to be used by his wife and children, as also his mother, who are his heirs for their maintenance.
14. In this case it is not seen whether the deceased was an employee. He has not received any death-cum-retiral dues. He has made investments in certain companies by way of shares and 5 TP (L.) No.455_2011
securities. It is those shares which are required to be transmitted to his wife and his two married daughters. Ofcourse, counsel on behalf of the Petitioner made it clear that the other two married daughters are not required to be maintained from the estate of the deceased and would pay court fees in respect of their shares. It is only the widow who had applied for exemption with regard to only her 1/3 rd share.
15. However, reading of the petition does not show that the widow is otherwise unable to maintain herself. It is not only for the petitioner to state that fact, but to also substantiate that fact. The deceased is not shown to be an employee. The transmission of shares and securities, therefore, would not be on par with "monies payable to the legal heirs of her deceased husband on account of his death" as they are not death-cum-retiral dues of an employee leaving behind the widow and children.
16. Besides, there are no property disputes which the widow is constrained to prosecute or defend before she gets the amount receivable from the estate of her deceased.
17. In view of the aforesaid, this case is wholly distinguishable from the case of Bipin Shah. Consequently merely because the Petitioner is the widow or child of the deceased the Petitioner would not be entitled to any remission, exemption or waiver of the Court fee statutorily required to be payable U/s.379 of the ISA for securities or other debts of the deceased.
18. The Petitioner shall, therefore, pay requisite Court fee after which the Petition shall proceed.
( ROSHAN DALVI, J.)
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